Hawai‘i Gas Boiling Against Landmark Decision on Solar Water Heaters

Hawaiʻi is the first state to establish a goal of carbon neutrality by 2045.

Matt Mallams for Earthjustice

The Court correctly determined the law does not support giving gas variances such special treatment. Hawai‘i Gas’s attempt to barge in after the fact to benefit its fossil fuel business will not change that.

Leina‘ala Ley

Attorney, Earthjustice

February 25, 2019

Honolulu, HI —

On Friday, The Gas Co. LLC (dba Hawaiʻi Gas), a subsidiary of Australian-based Macquarie Infrastructure Group, filed a request to intervene in state environmental court so that the company can reopen the court’s decision three weeks ago upholding the state law mandate that new home construction include solar water heating. Hawaiʻi Gas seeks to resurrect a special wholesale exemption for gas water heaters that the court ruled skirted the purpose of the law.

“At a time when Hawaiʻi is forging full speed ahead to a 100% renewable, carbon-free future, Hawaiʻi Gas is still busy trying to drag us back to the past,” said Marti Townsend, director for the Sierra Club of Hawaiʻi. “It was always wrong to allow a special exemption for gas, and Hawaiʻi Gas’s attempt to turn back the clock is not only wrong legally, but also on the wrong side of history.”

Earthjustice, on behalf of Sierra Club and the Hawaiʻi Solar Energy Association (“HSEA”), brought the lawsuit five months ago against the state Department of Business, Economic Development, and Tourism (“DBEDT”), challenging the agency’s practice of rubberstamping variance requests for gas heaters without any consideration of the overall consumer and environmental costs. In the nine years since the mandate went into effect, DBEDT had granted nearly 100% gas variance applications, amounting to 6,541 of the total 6,964 variances permitted by the agency. On February 5, the court ruled that such “wholesale” granting of gas variances contradicted the law’s purpose of promoting the benefits of solar water heating and the legislature’s intent that variances from the solar water heater mandate be “rarely, if ever, exercised or granted.”

“In the past, DBEDT gave gas variance applications a free pass, instead of evaluating the costs and benefits in each case as required by law,” said Earthjustice attorney Leināʻala Ley, who argued the case before the court. “The Court correctly determined the law does not support giving gas variances such special treatment. Hawaiʻi Gas’s attempt to barge in after the fact to benefit its fossil fuel business will not change that.”

Before reaching any of Hawaiʻi Gas’s arguments against the solar water heating mandate, the court must first decide whether the company should be allowed to intervene. The factors the court must consider include whether the request is timely, whether the company has an interest in the lawsuit, and whether that interest was not adequately protected by existing parties. Hawaiʻi Gas argues it has a “distinct economic interest” in the gas variances as “the only regulated gas utility provider in Hawaiʻi.”

“Hawaiʻi Gas calls itself ‘the clean energy company,’ but wants to block out the real clean energy shining on us every single day,” said Will Giese, Executive Director for HSEA. “The truth is, Hawaiʻi has already lost millions of dollars in consumer savings and added tons of greenhouse gases to the climate change crisis until this lawsuit finally stopped the free pass for gas.”

“Burning fossil fuels is not ‘clean,’ nor is it ‘cheaper’ for consumers or the state, especially with climate change threatening everything we love about Hawaiʻi,” said Townsend. “It’s time for Hawaiʻi Gas to stop fighting the future and evolve to a business that doesn’t put profits over people and the planet.”